Bader v. Johnson & Johnson, No. A158868 (D1d4 Dec. 23, 2022).
Another case about whether exposure to talc causes mesothelioma. This one principally concerns three challenges to plaintiff’s experts. I’m going to focus on the first one.
A disclaimer: I have already explained that I know nothing about, and want nothing to do with, asbestos litigation. I am neither a products liability lawyer, nor do I play one on TV. My only interest here is in the law of evidence. So any facts in this post are based on what I gather from the opinion. I have no other knowledge or expertise. But since this case addresses a really interesting evidentiary issue (and, in my opinion, gets it wrong) I’m going to need to get into a little detail.
First, some terminology. The opinion explains that “asbestos” refers to a group of six minerals, but only when they grow in “asbestiform habit,” which is a certain kind of crystalline structure. It is this structure that apparently makes them conducive to getting stuck in human tissue, which can cause cancer. Talc is not one of the six minerals. But sometimes mined talc can be contaminated with the asbestiform habit of one of the six minerals (i.e., asbestos). And talc can also sometimes occur in an asbestiform habit on its own. But asbestiform talc is not asbestos, because talc is not one of the six minerals.
So, simplifying a little, we have 3 categories:
(A) Uncontaminated non-asbestiform talc;
(B) Uncontaminated talc that includes asbestiform talc; and
(C) Talc contaminated with actual asbestos, whether or not it also contains asbestiform talc.
The fight, as I gather it, is over whether this expert can say that (B) causes meso.
Defendant challenges that testimony under Sargon, under which a court is supposed to exclude expert testimony that “is (1) based on matter of a type on which an expert may not reasonably rely, (2) based on reasons unsupported by the material on which the expert relies, or (3) speculative.” The rub here comes down to (1) and/or (2). Because the standard of review is abuse of discretion, the question is whether there was substantial evidence in support of the trial court’s finding that this expert relied on reasonable stuff and drew reasonable conclusions from it.
There are apparently a bunch of monographs put out by the International Agency for Research on Cancer, which is part of the WHO. These mongraphs are meta-epidemiological reviews of other studies, including human studies, animal studies, and mechanistic evidence regarding how chemicals interact with cell chemistry or physiology.
There are three monographs at issue. The first, published in 1987 (which summarized another 1987 publication) says that there is inadequate evidence that (A) causes cancer. But there is adequate evidence that (C) does. But definitionally, the monograph lumps (B) (asbestiform talc) in with (C) (actual asbestos), so it is ambiguous on that point.
The second, published in 2010, reviewed the 1987 monograph and read its finding to mean that there was adequate evidence that “talc containing asbestos or asbestiform fibres,” “expressly defining ‘asbestiform fibres’ to include talc growing as fibers in an asbestiform habit,” i.e., (B) or (C), caused cancer. B it did not actually reassess the evidence on this point. Indeed, the point of this monograph was to reassess whether the evidence of carcinogenicity remained inadequate as to (A), which it did.
The third, published in 2012, noted that the 2010 monograph included asbestos-contaminated talc within the talcs it considered to be cancer causing, and agreed that talc containing asbestos should be regarded as carcinogenic to humans. But it never made clear finding either way regarding talc with asbestiform habit that is not contaminated with actual asbestos. Indeed, it recognized that “a separate review of talc containing asbestiform fibres was not undertaken.”
The Court of Appeal reads some inconsistency between the second and third monographs interpretation of the first one, such that the second says (B) or (C) is carcinogenic, while the third says (B) and (C), mixed together, are. And since the trial “court’s gatekeeping role does not involve choosing between competing expert opinions,” the Court holds there was substantial evidence for the expert to rely on to say that there is evidence that (B) causes cancer. Plus there’s some other figments of evidence that suggest that is right, such as some cautionary letters that some doctors wrote to an editor, some uncertain animal studies, and some anecdotal clinical evidence.
The Court notes that Defendants argued that the expert’s opinion was against the great weight of the consensus in the field. But, says the court, that is not a Sargon issue. It is an argument that the expert’s technique is insufficiently well-established in the relevant scientific community. That is, an objection under the old, pre-Sargon test in People v. Kelly, 17 Cal. 3d 24 (1976)! And since Defendant didn’t raise a Kelly objection, it was forfeited.
The Court also finds that Defendants failed to establish prejudice. The expert apparently testified to a second theory that Defendants contested with an expert of their own but didn’t object to, and there was additional testimony from another plaintiff expert that also suggested (albeit collaterally) that fibrous talc causes meso.
Justice Streeter writes a separate concurrence on this issue. He agrees that this wasn’t a Sargon question. He also agrees that the appropriate objection would have been under Kelly, which was not made. He notes that Kelly applies to “techniques, processes, or theories” that are new.
He admits that Kelly generally didn’t generally apply to medical causation opinions that did not involve new techniques and that the Supreme Court had previously decline to adopt the more stringent Daubert standard that applies in federal courts. He suggests, however, that post-Sargon the Kelly rule could perhaps examine whether the expert’s theory here is sufficiently “new” that it could be subjected to Kelly scrutiny.
Justice Streeter goes on to discuss a federal assessment of criminal forensic evidence that encouraged the examination of the scientific validity of science based expert opinion, and suggests that those considerations could be incorporated into a Kelly analysis. In particular, he notes that the expert’s opinion here was subject to questions of “foundational validity”—questions that ask not only if a theory is accepted, but also whether it is actually a scientific theory at all, subject to empirical demonstration and observable rates of error.
Affirmed.
Some observations:
First, there’s really not a difference of scientific opinion here that the court needs to resolve. The difference between the way the 2010 and the 2012 monographs describe the 1987 on is a difference in grammar—and not a particularly significant one at that. The court doesn’t need to play junior varsity scientist to know that none of the monographs made any conclusion that asbestiform talc, uncontaminated by actual asbestos, was carcinogenic. The fact that the 2010 monograph, merely discussing the results of the 1987 one, used the word “or” cannot change that.
Second, by creating a scientific controversy where there wasn’t one, the court avoided a core obligation under Sargon: to “determine whether, as a matter of logic, the studies and other information cited by experts adequately support the conclusion that the expert’s general theory or technique is valid.” Sargon Enterprises, Inc. v. Univ. of S. California, 55 Cal. 4th 747, 772 (2012) (quoting Imwinkelried & Faigman, Evidence Code Section 802: The Neglected Key to Rationalizing the California Law of Expert Testimony, 42 Loyola L.A. L.Rev. 427, 449 (2009)*).
The question really presented here is: In the practice of medicine and epidemiology, is it appropriate to draw the conclusion that “x causes cancer,” based only upon underlying studies that show “x causes cancer when combined with y,” when the carcenogenicty of y in isolation is well-established. Particularly when those studies flat out say that “a separate review of [x] was not undertaken[.]”
That is precisely the kind of question Sargon calls on courts to answer as part of their gatekeeping function over experts’ reasoning. Indeed, that question was answered in the negative by the Court of Appeal in Lockheed Litig. Cases, 115 Cal. App. 4th 558, 565 (2004), which was extensively discussed by the Sargon court, which concluded that “[w]e agree with this analysis.”
So, third, I disagree that this is really a Kelly question. Kelly asks whether an expert’s theories or methods are “generally accepted” in the relevant field. The flaw of Kelly is that it rejected scientifically sound things for being new, but was perfectly fine with received wisdom, even when the received wisdom was pseudoscientific bullshit. (See, e.g., most criminal forensic techniques of the 20th century.) But the problem with this expert’s testimony is not really that it is new. It is that it is not science. Deciding how to read ambiguities between a series of 10-25 year old monographs is not employing the scientific method. It is just interpreting words.
Which is not to say that Justice Streeter isn’t 100% right that courts should be looking to the “foundational validity” of scientific expert testimony. That should raise the same kind of questions that the U.S. Supreme Court noted in Daubert. Is this actually science? Is the kind of stuff the expert is doing on the stand of the same quality and rigor she would use in the laboratory? Is the conclusion falsifiable?—what could prove the expert wrong? Has anyone done that test outside of litigation? What were the results? Is there a rate of error? But those aren’t questions that Kelly ever demanded an answer to.
Finally, Defendants in these cases might want to reformulate their appellate strategy in the trial court. They are losing on prejudice because they are making unnecessary concessions and because similarly enough un-objected to material is making it into the trial record.
Plaintiffs in these cases typically don’t appeal trial losses. Which means these important evidentiary issues get decided on appeal only in cases where the procedural posture is particularly unfavorable for the defendant: in appeals of plaintiff jury verdicts. In those cases, appellate courts tend to go out of their way to affirm. (Not because they are necessarily plaintiff-friendly, but because a reversal requires a significant additional expenditure of judicial resources to retry a case.) That being the case, every foregone objection or unnecessary concession compounds the risk of a “no prejudice” affirmance on appeal.
I get that’s not an easy thing to do. Trial lawyers hate making lots of objections because it suggests to the jury that there’s something to hide. And they make concessions to appear reasonable to the court and the jury. But there have to be a huge number of these talc cases pending statewide. Pick a test case. Object to everything. In limine everything. Demand 402 hearings on every expert. Make no concessions. Take one for the record on appeal.
*FWIW, 20 years ago, I was David Faigman’s research assistant while in law school. The experience left me a bit of a Daubert hawk.
